Citation Nr: 0016233
Decision Date: 06/19/00 Archive Date: 06/28/00
DOCKET NO. 96-49 781 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for a left eye disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Richard Giannecchini, Associate Counsel
INTRODUCTION
The veteran had active military service in the U.S. Army from
March 1955 to March 1958.
A perfected appeal to the Board of Veterans' Appeals (Board)
of a particular decision entered by a Department of Veterans
Affairs (VA) regional office (RO) consists of a Notice of
Disagreement (NOD) in writing received within one year of the
decision being appealed and, after a Statement of the Case
has been furnished, a substantive appeal (VA Form 9) received
within 60 days of the issuance of the Statement of the Case
(SOC) or within the remainder of the one-year period
following notification of the decision being appealed.
The present case arises from a July 1996 rating action which
denied the veteran's claim of entitlement to service
connection for a left eye disability. An NOD was filed in
August 1996, and an SOC issued the same month. In October
1996, the veteran filed a VA Form 9. In May 1997, the
veteran testified before a hearing officer at the VARO in
Buffalo. Supplemental statements of the case (SSOC) were
issued in August and November 1997. Thereafter, the
veteran's appeal came before the Board, which, in a June 1998
decision, remanded the appeal to the RO for additional
development. An SSOC was issued in February 2000.
REMAND
A review of the claims file reflects that the veteran filed a
claim of entitlement to service connection for a left eye
disability in August 1995. In an accompanying statement in
support of his claim (on Form 21-4138), the veteran indicated
that he had been struck in the left eye by a baseball in
service. He reported having been hospitalized for 17 days at
Fort Jackson, SC, and having received subsequent examinations
of his left eye at Fort Sill, OK, and Fort Polk, LA. He
indicated that the injury and initial treatment occurred
during his basic combat training, which covered the period
from March to June 1955.
In September 1995, the RO notified the veteran that a fire in
1973, at the National Personnel Records Center (NPRC), had
possibly destroyed his service medical records, and asked him
to submit evidence verifying his unit assignments. The
following month, with the assistance of his then-
representative, the Monroe County Veterans Service Agency,
the veteran submitted an NA Form 13055 (Request for
Information Needed to Reconstruct Medical Data), in which he
listed his unit assignments over the course of his active
service career. They included the 101st Airborne Division,
Support Company, while at Fort Jackson and at Fort Sill; the
Ordinance School at the Aberdeen Training Grounds in
Maryland; and the 1st Mag. Platoon, 661st Ordinance Company,
while at Fort Sill, and later at Fort Polk.
In an accompanying statement (on VA Form 21-4138), the
veteran informed the RO that his left eye had been examined
following his release from active service at Fort Stewart,
Fort Gordon, and Moody Air Force Base. He also submitted an
eye examination report from Penn Optical Vision Center, dated
in February 1994. The report noted lens correction for a
decreased loss of vision in the right eye, with the left eye
undergoing no correction. The correction was made for
presbyopia and mild astigmatism.
During this period, attempts were made to procure the
veteran's service medical records from NPRC. In March 1996,
NPRC notified the RO:
Need specific unit within 101st Abn Div
to search alternate records. Searched
M/Rs of 661 Ord Co, 1st Mag Plt from Oct.
1, 1956 thru Dec. 31, 1956. No mention
of subject's illness, injury, or
treatment. Need exact date of treatment
to search allegation.
A letter from the RO, dated in April 1996, informed the
veteran of NPRC's findings and its further request for
additional information. In July 1996, the RO denied the
veteran's claim of entitlement to service connection for a
left eye disability, noting that the veteran had not
responded to its April 1996 letter. In August 1996, the
veteran requested that the RO attempt to procure his medical
treatment records from Fort Stewart and Moody Air Force Base;
this was undertaken by the RO the following month. In
September 1996, the RO was informed by Moody Air Force Base
that none of the veteran's medical treatment records could be
found on file at that facility.
In October 1996, the veteran filed a VA Form 9, in which he
reiterated his contentions that his left eye disability had
been incurred in service. He also informed the RO that he
had supplied evidence directly to NPRC as requested in April
1996, pertaining to his unit assignments while in service.
These documents included a letter, dated in April 1996, from
the Monroe County Veterans Service Agency to NPRC concerning
the request for additional service information; a copy of the
veteran's September 1955 graduation certificate from the
Ordinance School at the Aberdeen Proving Grounds; a Form 1270
(Transfer or Release to the Reserve Component of the Army),
dated in March 1958; and a copy of a previously submitted NA
Form 13055, in which the veteran indicated he had been with
the 1st Mag. Plt., 661st Ord. Co., while at Fort Sill, and not
the 101st Airborne Division. In addition, a National
Archives Form 13076 (Report of Search of Organizational
Records), dated in February 1996, was also sent to NPRC,
which later returned it to the Monroe County service
organization, and noted:
See attached directory listing from April
1955 for Ft. Jackson and Dec. 1955 for
Ft. Sill. We need the exact unit
assigned to in order to search alternate
records. Army sick reports end in 1953.
In May 1997, the veteran testified before a hearing officer
at the VARO in Buffalo. He reported that, following the
injury to his left eye, he had been told by the treating
doctor that the eye was dead due to nerve damage. He also
stated that pain and redness had persisted for about three or
four months following the injury, and military doctors at the
bases to which he was subsequently assigned had examined his
left eye, but never undertook any treatment. The veteran
testified that he did not remember having a medical
examination when he separated from service, and that at no
other time had his left eye ever been injured. He reported
that he had filed for benefits with the Army for his left eye
following active service, and was examined at base medical
facilities. When asked for specifics about the claim, and
about being seen at base medical facilities even though not
on active service, the veteran could not provide any
information. Furthermore, he indicated that he had suffered
from a loss of vision and blurring in his left eye ever since
the injury in 1955.
In July 1997, the RO was informed by Fort Stewart that no
medical treatment records were on file for the veteran. That
same month, NPRC notified the RO that they needed complete
unit organization information in order to search morning and
sick reports of the 101st Airborne Division. Along with the
notice, NPRC included an organizational listing of the
various units comprising the 101st Airborne Division.
In September 1997, the veteran submitted a statement from
Saul Presberg, M.D., of Presberg and Robinson Eye Associates.
Dr. Presberg noted:
[The veteran] has a macular scar in his
left eye which appears to be traumatic in
nature and very old, it can certainly
easily be 30-40 years old. This was not
of inflammatory nature but from previous
trauma. Visual acuity in his right eye
is 20/20 and the left eye with the
macular scar, is 20/200. He also has
small age related cataracts in each eye
which are minimal.
That same month, the RO also received a statement from the
veteran's sister, dated in August 1997. She reported having
no knowledge of the veteran ever having received an eye
injury prior to his entry into the Army. In addition, she
remembered her mother having received a letter from the Army
concerning an injury to the veteran's left eye while he was
on active service; however, she was unable to locate the
letter.
In a June 1998 decision of the Board, the matter was remanded
to the RO so that the veteran could be afforded the
opportunity to submit more precise information regarding
treatment dates and his military units, as was requested by
NPRC. Furthermore, the Board requested that an additional
search for the veteran's records be undertaken with the
United States Army, Office of the Surgeon General (SGO).
In September 1998, the veteran underwent a VA
ophthalmological examination. Following a clinical
evaluation, the examiner's diagnosis included a possible
fractured left orbit, enophthalmos of the left eye, and a
traumatic macular scar of the left eye. In September 1999,
the veteran again underwent an ophthalmological evaluation.
The examiner noted that an external examination of the left
eye reflected evidence of left enophthalmos and a flattening
of the inferior orbital rim, consistent with an orbital
fracture. Slit lamp examination revealed a major macular
disruption of the left eye, of longstanding duration. The
examiner's impression was post trauma to the left eye with
orbital fracture signs and posterior pole macular disruption.
The examiner further opined that, given the veteran's history
as reported, and barring any other trauma to the left eye, it
was most likely that the veteran's reported trauma of being
hit by a baseball in the left eye had contributed to his
macular disruption and enophthalmos.
In a February 2000 SSOC, the RO again denied the claim,
noting that the veteran had failed to respond to its request
to submit information which would allow for additional
searches for his service medical records with NPRC.
Subsequently, in March 2000, the veteran submitted a
statement to the RO in which he noted that any and all
evidence with respect to his claim had been previously
submitted.
As noted above, it appears the veteran's service medical
records were destroyed in a fire at NPRC in 1973. In such
cases, VA has a heightened duty to explain findings and
conclusions, and to consider the benefit of the doubt rule.
See O'Hare v. Derwinski, 1 Vet.App. 365 (1991). This
heightened duty in a case where service medical records are
presumed destroyed includes the obligation to search for
alternate medical records. Moore v. Derwinski, 1 Vet.App.
401, 406 (1991).
The veteran has reported the trauma to his left eye occurred
during basic training at Fort Jackson, sometime in March or
April 1955, and that at that time he had been assigned to the
101st Airborne, in particular a "Support Company." The
veteran has been given an opportunity to submit additional
evidence with respect to medical treatment dates and specific
unit identification within the 101st Airborne, but has been
unable to provide any further information. The most recent
ophthalmological examination, in September 1999, lends
further support to his claim, given that the examiner found
signs of post trauma to his left eye orbit. However, the
fact that he filed his claim for service connection for an
eye disorder 37 years after his separation from active
service has certainly contributed to a void in the record.
The Board observes that a search for records associated with
the 101st Airborne during the periods in question has not
been undertaken, given the lack of more specific information
from the veteran. We are also cognizant that a search of
records, if any, from Fort Jackson has never been undertaken.
In this respect, the veteran should again be asked to give
more specific identifying information regarding his assigned
unit(s) during basic training, whether with the 101st
Airborne or some other training unit. This information, if
any, should be submitted to NPRC for an additional record
search. In addition, if feasible, a search of any records,
i.e., hospital treatment records, morning reports, etc.,
associated with Fort Jackson from March to June 1955, should
be made.
The veteran is hereby advised that, while VA does have a duty
to assist him in the development of his claim, that duty is
not limitless. His cooperation in responding to requests for
information is required. We wish to emphasize to the veteran
that "[t]he duty to assist in the development and
adjudication of a claim is not a one-way street." Wamhoff
v. Brown, 8 Vet.App. 517, 522 (1996). "If a veteran wishes
help, he cannot passively wait for it in those circumstances
where he may or should have information that is essential in
obtaining the putative evidence." Wood v. Derwinski, 1
Vet.App. 190, 193 (1991). See also Brock v. Brown, 10
Vet.App. 155, 165 (1997), Olson v. Principi, 3 Vet.App. 480,
483 (1992).
The Board is aware of the RO's diligent attempts at locating
the veteran's records. In this instance, given the veteran's
credible contentions, the fact that his service medical
records appear to have been lost in the 1973 fire due to no
fault of his own, as well as the current medical findings, we
believe an additional attempt at obtaining corroborative in-
service evidence of the veteran's claimed left eye trauma
should be undertaken.
While we regret the delay, in view of the foregoing, and in
order to properly evaluate the veteran's claim, the case is
REMANDED to the RO for the following development:
1. The RO should again attempt to procure
from the veteran specific treatment dates
and unit organization information with
respect to his assignment to the 101st
Airborne Support Company or any other
training unit during his basic combat
training (BCT), so that a search of
alternate records, i.e., pertinent sick
call and morning reports, through NPRC,
can be made. NPRC should also be
requested to search any available records
associated with the base medical facility
at Fort Jackson for the period March
through June 1955, being aware that any
absence from duty would have removed the
veteran from his BCT schedule. A record
should be made of the results of any such
searches, and, if no records are
available, this should be noted by NPRC.
2. The RO should also advise the veteran that
he may submit alternate evidence to
support his contentions that the
disability for which he is seeking service
connection was incurred during his active
duty service. This evidence may include
statements from service medical personnel,
statements or affidavits from former
service comrades, or letters written
during service, etc.
3. After the development requested above has
been completed to the extent possible, the
RO should again review the record. If the
decision remains adverse to the veteran in
any way, he and his representative should
be furnished a supplemental statement of
the case and given the opportunity to
respond thereto. The case should be
returned to the Board for further
appellate consideration, if otherwise in
order, following appropriate appellate
procedure.
By this REMAND the Board intimates no opinion, either legal
or factual, as to the ultimate determination warranted in
this case. The purpose of this REMAND is to further develop
the record and ensure due process of law. No action is
required by the veteran until he receives further notice.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
final decision of the Board of Veterans' Appeals is
appealable to the United States Court of Appeals for Veterans
Claims. This remand is in the nature of a preliminary order
and does not constitute a final decision of the Board on the
merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).